It turned out that it was worth watching what those in the
Nixon Administration did as well as what they said.

The same is true with respect to FCC Chairman Tom Wheeler
over at the Federal Communications Commission, especially with regard to the
FCC’s recent decision to impose Title II public utility regulation on Internet
providers. Watching what Chairman Wheeler has now done does not always square
with what he previously said.

Here are a few examples:

In 2011, Mr.
Wheeler wrote in his blog that “the regulatory
oversight of wireless carriers will continue to atrophy as the digital nature
of the wireless business separates it from the legal nexus with traditional
analog telecom regulation.” [The link is to a New York Times article quoting Mr. Wheeler’s blog posting, which
has been removed.]

Under
the FCC’s
March 12, 2015 Internet Regulation order, instead
of regulatory oversight atrophying, as it should given the competitive
environment in the wireless marketplace, wireless broadband will be subject to
much stricter regulation. Rather than acknowledging that the “legal nexus” does
not exist to impose Title II regulation on wireless broadband providers, Mr.
Wheeler resorts to a contorted legal analysis in an attempt to apply the
“traditional analog telecom regulation” regime to wireless digital broadband
services.

In December 2013, The
Verge reported that Mr. Wheeler said
this: "I think that we're seeing the
market evolve in such a way that there will be variations in pricing, there
will be variations in service…Netflix might say, 'I'll pay in order to make
sure that my subscriber might receive the best possible transmission of this
movie.'"

In the March 2015 order, Mr. Wheeler
insisted on an absolute ban on so-called “paid prioritization,” preventing the
evolution of Internet services in a way that might allow the development of – or
even the experimentation with – two-sided market models involving “variations
in pricing” and “variations in service.” This despite widespread agreement
among economists that such two-sided market models might well benefit consumers
by reducing end-user prices and improving service quality. As prominent
regulatory economist Robert Crandall, a member of FSF’s Board of Academic
Advisors, explained in his recent Perspectives: “Collecting fees from
content providers for better, more reliable connections is likely to induce the
ISPs to compete more aggressively for customers, thereby reducing consumer
subscriber fees. As a result, it is difficult to demonstrate that ISPs would
profit materially from collecting interconnection fees from content networks or
that such a practice in two-sided markets is economically less efficient than
having ISPs rely solely on subscriber fees for their revenues.”

In May 2014, at
the time the agency issued its rulemaking proposal, Mr.
Wheeler assured the public that the Commission’s proposal did not cover interconnection
arrangements between Internet transit networks and the Internet providers that
provide Internet services to consumers. He said: “This is a different matter
that is better addressed separately.”

In the March 2015 order, the FCC subjects
interconnection arrangements to Sections 201 and 202 of the Communications Act,
the core provisions of public utility regulation. Although the Commission
doesn’t apply the full panoply of Title II rules, it invites complaints to be
filed under Sections 201 and 202 which it will adjudicate on a case-by-case
basis, almost certainly resulting in rate regulation (which the Commission simply
will call by another name.)

My purpose here is not to make a legal argument concerning
the sufficiency of the FCC’s May 2015 rulemaking notice under the
Administrative Procedure Act requirements, although there are certainly several
credible grounds for making such an argument. My purpose instead, to put it
gently in terms that John Mitchell may have understood, is simply to show the
extent to which it would be a mistake to rely on what Mr. Wheeler earlier said
as opposed to what he ultimately did.

I think the foregoing also serves to demonstrate why it
would not be wise for all those entities which comprise what we now often call
the Internet ecosystem – in other words, including those “edge providers” and
others thought not to be immediately subject to the FCC’s new mandates – not to
put too much stock in whatever Mr. Wheeler or his fellow commissioners say at
the moment about not regulating this or that business in this or that way.

And, of course, no one in the Internet ecosystem should put
much stock in the notion that future commissioners will be bound by whatever
present commissioners now say about their intentions.